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Kiobel, Extraterritoriality, and the 'Global War on Terror'

For the purpose of exploring the issues of extraterritoriality raised in Kiobel v. Royal Dutch Petroleum, this project sought to examine how the federal courts have considered extraterritoriality in cases arising in the so-called “global war on terror” (the GWOT). The inquiry leads to some new and arguably important observations about extraterritoriality in the GWOT policies and related jurisprudence.

The plaintiffs in Kiobel claimed, under the Alien Tort Claims Statute (the ATS), that the defendant corporations were liable for complicity in Nigeria’s conduct of indefinite detention, torture, and extrajudicial killing. The Court departed from the issue of corporate liability under international law to question whether the ATS, when invoked in cases involving foreign litigants for conduct abroad (so-called “foreign cubed cases”), was an extraterritorial exercise of jurisdiction, in violation of domestic presumptions or international law principles on jurisdiction. The move was surprising, because the application of the ATS is arguably a permissible exercise of adjudicative jurisdiction, rather than an impermissible exercise of prescriptive or enforcement jurisdiction.

In exploring this move in Kiobel this article set out to examine how the federal courts have approached issues of extraterritoriality in claims of indefinite detention, torture, and extrajudicial killing arising in response to the GWOT. This inquiry suggests that the government conduct giving rise to these GWOT cases itself constituted the extraterritorial exercise of U.S. prescriptive and enforcement jurisdiction in foreign territory. Moreover, in many instances the conduct was arguably undertaken without clear Congressional approval or other legal authority, and was thus likely in violation of both the international law principles limiting the exercise of domestic jurisdiction abroad, and the domestic presumption against extraterritoriality.

The second observation arising from the inquiry, is that the courts, the relevant bar, and the academy have not acknowledged or sufficiently examined the extent to which this government conduct was an extraterritorial application of U.S. law and policy. Rather, all the focus, by both the courts and the academy, is on whether U.S. rights can apply extraterritorially to protect the foreign claimants in these cases. Strictly limiting the extraterritorial application of U.S. legal rights, the courts have not questioned the application of U.S. law and policy that gave rise to those rights claims in the first place.

There is also a stark contrast between the manner in which the courts apply standards, canons of statutory construction, and various doctrines, in legitimizing the government conduct and immunizing U.S. defendants from claims on the one hand, and in limiting the availability of U.S. legal rights, and operation of the ATS itself, on the other hand. Moreover, with respect to the key issue of nexus, which is core to the decision in Kiobel, the courts seem to apply very different standards.

The article explores some of the arguments for why the U.S. conduct in these GWOT cases is not impermissibly extraterritorial, and thus why the courts ought not be concerned. But even if in the specifics of each case the doctrinal treatment is correct, given the contrast between the approach of the Court to extraterritoriality in Kiobel to that of the courts in the GWOT cases, it is argued that the issues nonetheless deserve more analysis and debate. While Kiobel may have left the ATS dead to claimants in foreign cubed cases, it may lead to renewed inquiry into the legitimacy of the extraterritorial exercise of U.S. jurisdiction in the GWOT.